Feds challenge state law limit immigrant checks

Monday

Sep 24, 2007 at 12:01 AMSep 24, 2007 at 4:13 PM

A new state law designed to limit employers from checking whether new hires are illegal aliens is an attempt to supersede a federal law and should be declared invalid, according to a suit filed Monday in U.S. District Court in Springfield.

Dana Heupel

A new state law designed to limit employers from checking whether new hires are illegal aliens is an attempt to supersede a federal law and should be declared invalid, according to a suit filed Monday in U.S. District Court in Springfield.

The federal government sued the state, contending that Public Act 095-0138, which Gov. Rod Blagojevich signed in August, is illegal because it prevents Illinois employers from participating in a federal program to check the legal status of job applicants.

“Today’s lawsuit seeks to invalidate an Illinois state law that frustrates our ability to assist employers in making sure their workforce is legal, and in doing so conflicts with federal law,” Carl Nichols, deputy assistant attorney general for the Justice Department’s Civil Division, said in a news release.

At the heart of the issue is a federal program called E-Verify or the Basic Pilot system, operated by the U.S. Department of Homeland Security. It encourages -- but does not require -- employers to submit paperwork from new hires to determine if they are illegal aliens and thus forbidden from working in the United States.

Under federal guidelines, once an applicant accepts a job offer, the employer is encouraged to submit information to the Basic Pilot system within three days. Those records are compared with Social Security data and other DHS information. If the applicant is found to comply with federal law, which the lawsuit says happens in 92 percent of the cases, the employer is notified within three days.

If the Basic Pilot system cannot match the applicants’ records, it issues a “tentative nonconfirmation” notice. The employee then can choose whether to contest the notice or let it stand. If the applicant fights the “tentative noncomfirmation,” the federal government must issue a final determination within 10 working days, according to the lawsuit.

The new state law, which will go into effect Jan. 1, prohibits employers from enrolling “in any Employment Eligibility Verification Systems, including the Basic Pilot program,” until the Social Security Administration or DHS can make a final determination of eligibility within three days in 99 percent of the cases.

If employers do enroll, the state law obligates them to be trained in the Basic Pilot system and to inform applicants that their status will be checked, among other requirements.

Because the federal government does not make a final determination within three days, the stipulations in the state law “would effectively preclude employers in Illinois from enrolling in the Basic Pilot Program,” the lawsuit states.

As of Aug. 20, the suit says, about 750 Illinois employers participated in the verification program, which Congress authorized in 1996. Illinois is a target of the initial legislation because it is one of the five states with the highest estimated populations of illegal aliens.

Nationally, according to the suit, 22,205 employers participate in the program, and 2.9 million inquiries have been made this fiscal year.

The suit asks the court to declare that the state law is pre-empted by federal law and therefore “is invalid, null and void.”

Blagojevich’s office did not respond Monday to a request for comment, nor did Rep. Cynthia Soto, D-Chicago, who sponsored the legislation, House Bill 1744.